The 14th Amendment to the United States
Constitution was ratified on July 9, 1868. The first paragraph provides:

Section 1. All persons born or
naturalized in the United States, and subject to the jurisdiction thereof, are
citizens of the United States and of the state wherein they reside.No state shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States; nor shall any state deprive any
person of life, liberty, or property, without due process of law; nor deny to
any person within its jurisdiction the equal protection of the laws.

This paper is on the first sentence of the 14th
Amendment: "All persons born or naturalized in the United States, and subject to
the jurisdiction thereof, are citizens of the United States and of the state
wherein they reside "

Had the clause, "and subject to the jurisdiction thereof,"
not been added, our problem would be simple. All persons born in this country
would be citizens. But the clause was added, and it was not just a prefatory
clause–
it was a limiting clause, and its meaning
determines the question on anchor babies, which refers to children born in this
country to illegal aliens, or immigrants as the liberals prefer to call them.
The anchor part came about because many thought the child gave the family a
foothold or means of entry into the country for the parents.

So how do we determine the meaning of the clause, "and
subject to the jurisdiction thereof"?

On interpreting the meaning of a provision of the
Constitution, the great and revered Chief Justice John Marshall said in 1827:

This
Court has so often expressed the sentiments of profound and respectful reverence
with which it approaches questions of this character … .

Much, too, has been said concerning the principles of construction
which ought to be applied to the constitution of the United States.

On this subject, also, the Court has taken such frequent occasion
to declare its opinion, as to make it unnecessary, at least, to enter again into
an elaborate discussion of it. To say that the intention of the instrument must
prevail; that this intention must be collected from its words; that its words
are to be understood in that sense in which they are generally used by those for
whom the instrument was intended; that its provisions are neither to be
restricted into insignificance, nor
extended to objects not comprehended in them, nor contemplated by its framers
… . … [Emphasis added.]

When
we advert to the course of reading generally pursued by American statesmen in
early life, we must suppose, that the framers of our constitution were
intimately acquainted with the writings of those wise and learned men, whose
treatises on the laws of [25
U.S. 213, 354] nature and nations have guided public opinion … . If
we turn to those treatises, we find them to concur in the declaration, that
contracts possess an original intrinsic obligation, derived from the acts of
free agents, and not given by government. We must suppose, that the
framers of our constitution took the
same view of the subject, and the language they have used confirms this opinion.
… [Ogden v, Saunders, 25 U.S. 213
(1827)[1]]
[Emphasis added.]

The Ogden case,
above, was on federal bankruptcy laws and the provision of our constitution that
prohibits the states from passing laws that impair the obligation of contracts.
There were several opinions of different justices in this case, and they pretty
well cover the gamut of the six principles listed below for interpreting
provisions of our Constitution.

I consider the famous and controversial Dred Scott case,
Scott v. Sandford, 60 U.S. 393 (1856),[2] to contain the best and most
complete explanation of the duties and restrictions of the United States Supreme
Court that I have found. Chief Justice Roger Taney stated:

It is not the province of the court to
decide upon the justice or injustice, the policy or impolicy, of these laws. The
decision of that question belonged to the political or law-making power; to
those who formed the sovereignty and framed the Constitution. The duty of the
court is, to interpret the instrument they have framed, with the best lights we
can obtain on the subject, and to administer it as we find it, according to its
true intent and meaning when it was adopted. …

No one, we presume, supposes that any
change in public opinion or feeling, in relation to this unfortunate race, in
the civilized nations of Europe or in this country, should induce the court to
give to the words of the Constitution a more liberal construction in their favor
than they were intended to bear when the instrument was framed and adopted. Such
an argument would be altogether inadmissible in any tribunal called on to
interpret it. If any of its provisions are deemed unjust, there is a mode
prescribed in the instrument itself by which it may be amended; but while it
remains unaltered, it must be construed now as it was understood at the time of
its adoption. It is not only the same in words, but the same in meaning, and
delegates the same powers to the Government, and reserves and secures the same
rights and privileges to the citizen; and as long as it continues to exist in
its present form, it speaks not only in the same words, but with the same
meaning and intent with which it spoke when it came from the hands of its
framers, and was voted on and adopted by the people of the United States. Any
other rule of construction would abrogate the judicial character of this court,
and make it the mere reflex of the popular opinion or passion of the day. This
court was not created by the Constitution for such purposes. Higher and graver
trusts have been confided to it, and it must not falter in the path of duty.

This case was so important and so controversial, that all
nine of the justices wrote opinions in it. Some concurring and some dissenting.
But together they were prime examples of how the courts should reach a decision,
and the tools they should use. In the various opinions on the Dred Scott case
there were a number of references to Federalist papers, and reference to Sir
William Blackstone's Commentaries on the Common Law of England, which became the
common law of our country when the United States was formed. The history of our
country was gone into at length. The six rules of construction listed below were
adhered to and clearly demonstrated.

A judge or a justice, in deciding a provision in our
Constitution is not to inject his personal beliefs into the case, and decide
what he or she thinks it should mean under the changed circumstances of today.
Today's liberals call this kind of construction treating our Constitution as a
"living" document. This is absurd, and it clearly usurps the rights of the
people, who have the sole prerogative to make changes to our constitution. When
a question arises on the meaning of a provision of our Constitution, it should
be determined according to what was intended by those who formed and ratified
the provision. That was the purpose for which the provision was enacted, and has
nothing to do with what some liberal justice thinks is best. The two most
generally accepted encyclopedias of the law are Corpus Juris Secundum (C.J.S.)
and American Jurisprudence (2d.) (Am.Jr.2d).

Constitutional Law, § 20, 16 C.J.S. 70-74:

The function of
the Court, in construing a constitutional provision or an amendment, the
importance of which has been variously characterized, is to ascertain and give
effect to the intent of the framers and
the people who adopted it. In carrying out this function, the court should
consider the object sought to be accomplished by the adoption of the provision,
and proper regard should be given to the situation sought to be accomplished by
the adoption of the provision, and proper regard should be given to the
situation sought to be prevented or remedied, and the remedy sought to applied.
… [Emphasis added.]

Constitutional Law, § 61, 16 Am. Jur. 2d 431-432

An
elementary rule of construction is that, if possible, effect should be given to
every part and every word of a constitution, and that no portion of the
fundamental law should be treated as meaningless or superfluous, unless there is
some clear reason to the contrary. The legal intendment is that every word and
every clause has been inserted for some useful purpose, and, when rightfully
understood, has some practical operation; each word, it has been said, must be
presumed to have been carefully chosen and intentionally placed, as though it
had been hammered into place.

The following are things that
well-reasoned cases show are relevant to determining the meaning and purpose of
a provision of the Constitution.

1. Primary consideration shall be given to
the plain wording of the provision. Phrases and ideas of judges shall not be
engrafted and treated as a part of the constitution which are not a part of any
provision. All parts must be considered and given meaning. Where the wording
needs further construction for application to a particular question, the
following additional factors shall be considered to the extent needed.

2. Reliable and relevant legal and general
history of this country, and of Great Britain, where applicable, up to the date
of ratification. Learned treatises on a subject may be considered.

3. Relevant debates, speeches, and writings
of our founders, framers, and those who took part in ratification. A good
example is the many references the Courts have made over the years to The
Federalist papers, 85 essays which were written by three of our founders,
Alexander Hamilton, James Madison, and John Jay explaining to the country the
purposes of various parts of our Constitution, which they urged the people to
adopt. In Cohen v. Com of Virginia
(1821), 19 U.S. 264,[3] Chief Justice John Marshall said
of The Federalist papers:

The
opinion of the Federalist has always been considered as of great authority. It
is a complete commentary on our constitution; and is appealed to by all parties
in the questions to which that instrument has given birth. Its intrinsic merit
entitles it to this high rank; and the part two of its authors performed in
framing the constitution, put it very much in their power to explain the views
with which it was framed.

4. Relevant matters of official record, including congressional records,
legislative records, and other official records.
A very important factor to consider is
the Congressional Record on debates on proposed provisions.

5. Prior valid and relevant decisions of the
Court should be considered, and may be controlling. However, if a prior decision
was wrong it should be and often has been overruled and nullified.

6. Extraneous matters such as personal views
of judges and justices, events at a later date, changes in conditions, and what
other countries may be doing in like cases shall not be considered, as those are
matters for the people and their representatives, who have the sole prerogative
to change the Constitution when changes are needed.

These rules of construction have been followed by valid
Supreme Court decisions throughout our history. Although the United States
Supreme Court has not yet directly decided the matter, proper rules of
construction give us the answer as to whether or not anchor babies are citizens.

The best way to determine the meaning intended and the
purpose of the words in the 14th Amendment, "and subject to the
jurisdiction thereof," is to look at the congressional records and see what was
said about their purpose by those responsible for the wording. The primary
author of the words was Senator Jacob Howard of Michigan.
He was a member of the Joint Committee on
Reconstruction that drafted the Fourteenth Amendment. He was the floor manager
for the Amendment in the Senate. In this speech in the Senate, he introduces the
Amendment on the floor of the Senate and explains its purposes. We are fortunate
to have the record of Senator Howard's speech on the purpose and meaning of the
14th Amendment, with the comments of other senators.[4]
They were made available by Congressman Steve King of Iowa, who authored H.R.
140, the Birthright Citizenship Act of 1052015,
which provides:

SECTION 1.Short title.

This Act may be cited as the “Birthright Citizenship Act
of 2015”.

SEC. 2. Citizenship at birth for
certain persons born in the United States.

(a) In general.—Section
301 of the Immigration and Nationality Act (8
U.S.C. 1401) is amended—

(1) by inserting “(a)
In general.—” before “The following”;

(2) by redesignating subsections (a) through (h) as
paragraphs (1) through (8), respectively; and

(3) by adding at the
end the following:

“(b) Definition.—Acknowledging
the right of birthright citizenship established by section 1 of the 14th
amendment to the Constitution, a person born in the United States shall be
considered ‘subject to the jurisdiction’ of the United States for purposes of
subsection (a)(1) if the person is born in the United States of parents, one of
whom is—

“(1) a citizen or
national of the United States;

“(2) an alien lawfully admitted for permanent residence in
the United States whose residence is in the United States; or

“(3) an alien performing active service in the armed
forces (as defined in
section 101 of title 10, United States Code).”.

(b)
Applicability.—The amendment made by subsection (a)(3) shall not be
construed to affect the citizenship or nationality status of any person born
before the date of the enactment of this Act.

Congressman King and Senator David Vitter of Louisiana have
both introduced similar bills, one in the House and one in the Senate for the
purpose of ending the unlawful practice of the government
granting citizenship to anyone born in
the United States, even anchor babies. It is indeed disgraceful that our own
federal government is violating our Constitution in this manner.

The Senate debate on the forming and purpose of the 14th
Amendment, and particularly the clause, "and subject to the jurisdiction
thereof," is critical to this issue. It appears to be the only explanationavailable on its meaning and purpose, and I therefore consider it
controlling on the issue. The Congressional Globe is a publication of the
Congressional Record, and is available to the public.[5]
Due to its extreme importance I am making all eight pages of the congressional
record on the adopting of Section 1 available as an appendix to this article. The eighth page, 2897,
shows the end of the debate on Section 1, and its adoption; and then the Senate
took up Section 2. The adoption of Section 1 was apparently unanimous, since it
was simply stated that it was agreed to. A large part of the discussion
concerned whether or not a clause should be added to specifically exclude
"Indians not taxed," such as reservation Indians, to make sure they would not be
made citizens. Senator Howard explained that they would not be considered
subject to the jurisdiction of the U. S., and would not be citizens. The
majority agreed that such an amendment to the wording was not necessary to
exclude the Indians, and that they would not be made citizens. It is patently
absurd to think that the 14th Amendment would make children citizens
who were born to illegal aliens, who were unlawfully in this country, when not
even an American Indian was a citizen who was born to parents lawfully in this
country and who had lived here all of their life.

The Library of Congress has information that tells us how
important the Senate debate is, and how important the explanation of Senator
Howard is on the purpose of the clause, "subject to the jurisdiction thereof":

The amendment's language was
drafted by the Joint Committee on Reconstruction. The language defining
citizenship was not in the introduced version of the amendment (H. J. Res. 127),
but, was moved by Senator Howard of Michigan on May 30, 1866. It was adopted by
the Senate that day and later adopted by the House.[6]

"Senator Jacob Howard of Michigan
was a member of the Joint Committee on Reconstruction that drafted the Fourteenth
Amendment. He was the floor manager for the Amendment in the Senate."[7]

It is quite obvious that no one
would have better knowledge of the meaning and purpose of Section 1 of the 14th
Amendment than Senator Howard.

The following are what I consider
excerpts of the relevant and key parts of the debate:

Senator Howard explains:

This amendment which I have
offered is simply declaratory of what I regard as the law of the land already,
that every person born within the limits of the United States, and subject to
their jurisdiction, is by virtue of natural law and national law a citizen of
the United States. This will not, of course, include persons born in the United
States who are foreigners, aliens, who belong to the families of ambassadors or
foreign ministers accredited to the
Government of the United States, but will include every other class of persons.… (P. 2890)

We see from the above that we look to the parents to
determine the status of the baby born to them. If they are a foreigner or an
alien, then the baby born to them is the same. From the above, it might be
erroneously argued that foreigners and aliens would not be excluded unless they
also belonged to families of ambassadors or foreign ministers, because the word,
or, was not inserted before that last category, ambassadors or foreign
ministers. Had the word, and, been placed before the last category, that could
be more reasonably argued. As it is, there are three separate categories listed
of those excluded. Any doubt is also cleared up by further discussions and
statements. For example, Indians on reservations and not taxed are excluded from
being citizens, because they are members of what are considered "quasi foreign
nations." Certainly, if babies born to Indians are excluded as citizens because
their parents were members of merely a quasi foreign nation, babies born to
members of a real foreign nation would be excluded.

Senator Doolittle interposed:

I presume the honorable Senator
from Michigan does not intend by this amendment to include Indians. I move
therefore to amend the amendment … buy inserting the words "excluding Indians
not taxed." … (P. 2890)

Senator Howard:

I hope the amendment will not be
adopted. Indians born within the limits of the United States, and who maintain
their tribal relations, are not, in the sense of the amendment, born subject to
the jurisdiction of the United States. They are regarded, and always have been
in our legislation and jurisprudence, as being quasi foreign nations. (P. 2890)

Senator Cowan presented an important question on the law,
illustrating the difference between equal protection of the law, which is
afforded to everyone in the country, and jurisdiction for citizenship, which is
limited; and then answered it himself, according to his understanding:

Is the child of a Chinese
immigrant in California a citizen? Is the child of a Gypsy born in Pennsylvania
a citizen?… He has a right to
protection of the laws, but he is not a citizen in the ordinary acceptance of
the word. (P. 2890)

Senator Saulsbury remarked on the primary purpose of the
primary purpose of the 14th Amendment:

I do not presume that any one
will pretend to disguise the fact that the object of this first section is to
declare that negroes are citizens of the United States. (P. 2897)

It is interesting that Senator Howard said of the 14th
Amendment: "This amendment which I have offered is simply declaratory of what I
regard as the law of the land already." He apparently regarded negroes born in
this country as all having been freed by the conclusion of the Civil War. When
born, their parents were not the subjects of any foreign government. They were
in all respects subject to the entire jurisdiction of the United States.

Anchor babies, on the other hand, are born to aliens who
are subjects of a foreign government. Not only that, they are here illegally. It
is clear that one of the purposes of the clause, "and subject to the
jurisdiction thereof" was to exclude such people from citizenship. Any honest
judge or justice that examines the facts would so hold.

The United States Supreme Court has not yet directly ruled
on this question, although some relevant matters have been decided by it.

An Indian, born a member of one of the Indian tribes within the United
States, which still exists and is recognized as a tribe by the government of the
United States, who has voluntarily separated himself from his tribe, and taken
up his residence among the white citizens of a state, but who has not been
naturalized, or taxed, or recognized as a citizen either by the United States or
by the state, is not a citizen of the United States within the meaning of the
first section of the Fourteenth Article of Amendment of the Constitution.

We see from this case that it is the time of birth that determines the status of
the child. Later separation from the tribe and subjecting himself to the
jurisdictionof the country does not
suffice. This is consistent with the 14th Amendment, and Senator
Howard's explanation.

There was one dissent in the Elk v.
Wilkins case. The controlling opinion was delivered by Justice Gray. The
opinion states:

… The members of those tribes owed
immediate allegiance to their several tribes, and were not part of the people of
the United States. …

… The
main object of the opening sentence of the fourteenth amendment was to settle
the question, upon which there had been a difference of opinion throughout the
country and in this court, as to the citizenship of free negroes, (Scott v.
Sandford, 19 How. 393;) and to put it beyond doubt that all persons, white or
black, and whether formerly slaves or not, born or naturalized in the United
States, and owing no allegiance to any alien power, should be citizens of the
United States and of the state in which they reside. …

Justice Gray's controlling
opinion used the same kind of language, about allegiance to an alien power, as
was by used by Senator Howard about not including persons born who were
foreigners or aliens.

Justice Harlan, who dissented in
the Elk case, stated his basis which was that Elk "had fully and completely
surrendered himself to the jurisdiction of the United States, and still so
continues subject to the jurisdiction of the United States." Realizing its
importance, he referred at length to the Senate debate on the 14th
Amendment, particularly to the parts about not putting in the phrase Senator
Trumbull wanted of 'excluding Indians not taxed.' However, he overlooked the key
part, which was Senator Howard's explanation that it was not needed, because
they were excluded in the 'subject to the jurisdiction' part, and this was what
was accepted by the Senate.

In U.S. v. Wong Kim Ark, 169 U.S. 649 (1898),[8]
Justice Gray again rendered the majority opinion in the case, but this time I
consider his opinion wrong; although even it does not support making citizens of
babies born to illegal aliens.

Justice Gray stated:

Wong
Kim Ark was born in 1873, in the city of San Francisco, in the state of
California and United States of America, and was and is a laborer. His father
and mother were persons of Chinese descent, and subjects of the emperor of
China. They were at the time of his birth domiciled residents of the United
States, having previously established and are still enjoying a permanent
domicile and residence therein at San Francisco. They continued to reside and
remain in the United States until 1890, when they departed for China; and,
during all the time of their residence in the United States, they were engaged
in business, and were never employed in any diplomatic or official capacity
under the emperor of China. Wong Kim Ark, ever since his birth, has had but one
residence, to wit, in California, within the United States and has there
resided, claiming to be a citizen of the United States, and has never lost or
changed that residence, or gained or acquired another residence; n d neither he,
nor his parents acting for him, ever renounced his allegiance to the United
States, or did or committed any act or thing to exclude him [169 U.S. 649, 653] therefrom.
In 1890 (when he must have been about 17 years of age) he departed for China, on
a temporary visit, and with the intention of returning to the United States, and
did return thereto by sea in the same year, and was permitted by the collector
of customs to enter the United States, upon the sole ground that he was a
native-born citizen of the United States. After such return, he remained in the
United States, claiming to be a citizen thereof, until 1894, when he (being
about 21 years of age, but whether a little above or a little under that age
does not appear) again departed for China on a temporary visit, and with the
intention of returning to the United States; and he did return thereto, by sea,
in August, 1895, and applied to the collector of customs for permission to land,
and was denied such permission, upon the sole ground that he was not a citizen
of the United States. …

Justice Gray went at length into
the laws of England, even referring to Blackstone's Commentaries on the English
common law, and our early laws and cases; but he failed to properly consider the
Senate debate on the 14th Amendment, which should be controlling.
Senator Howard specifically stated that foreigners and aliens were not included,
although they were born here. It is also patently clear that a child born in
this country to an alien or foreigner takes the status of its parent or parents
at the time it was born. On this latter point, Justice Gray did recognize that
'All persons born in the allegiance of the king are natural- born subjects, and
all persons born in the allegiance of the United States are natural-born
citizens. Birth and allegiance go together. Such is the rule of the common law,
and it is the common law of this country, as well as of England.' This agrees
with Senator Howard's explanation on this same principle being applicable to the
14th Amendment. Wong Kim Ark's parents were foreigners and aliens,
and never became citizens. For him to have ever been a citizen, his mother or
father or both would have had to be a citizen at his birth. This was not the
case. He would then have to have complied with our naturalization laws to become
a citizen. Justice Gray did recognize
that the 14th Amendment was controlling in the matter.

He referred at length to the
Slaughterhouse Cases, which I will
cover later in this paper. The majority opinion was rendered by Justice Miller.Justice Gray stated:

Mr.
Justice Miller, indeed, while discussing the causes which led to the adoption of
the fourteenth amendment, made this remark: 'The phrase 'subject to its
jurisdiction' was intended to exclude from its operation children of ministers,
consuls, and citizens or subjects of foreign states, born within the United
States.' 16 Wall. 73. This was wholly aside from the question in judgment, and
from the course of reasoning bearing upon that question

Justice Miller clearly stated the limiting phrase of the 14th
Amendment, giving it the exact meaning stated by Senator Howard, who was
responsible for the wording, and knew the purpose better than anyone. Yet
Senator Gray brushed it a aside, and gave the clause an entirely different
meaning than was intended by those who formed and first passed the 14th
Amendment.

Justice Gray did recognized that a reason for his own
decision in the Elk case was:

That
decision was placed upon the grounds that the meaning of those words was 'not
merely subject in some respect or degree to the jurisdiction of the United
States, but completely subject to their political jurisdiction, and owing them
direct and immediate allegiance' … .

In the Elk case, the Indian was
denied citizenship because when born he owed allegiance to this tribe, which was
considered a quasi-foreign country, and he never became naturalized. This
complied with the purposes of those who formed the 14th Amendment.

Justice Gray in effect rewrites
the 14th Amendment, stating:

The
fourteenth amendment affirms the ancient and fundamental rule of citizenship by
birth within the territory, in the allegiance and under the protection of the
country, including all children here born of resident aliens, with the
exceptions or qualifications (as old as the rule itself) of children of foreign
sovereigns or their ministers, or born on foreign public ships, or of enemies
within and during a hostile occupation of part of our territory, and with the
single additional exception of children of members of the Indian tribes owing
direct allegiance to their several tribes.

The above was completely contrary to what the framers of
the 14th Amendment intended it to be. As shown by the quotes above
form the debate, the question of a child of a Chinese immigrant was specifically
discussed, and the Senate was satisfied that Howard's explanation of the
exclusions of foreigners was sufficient.

It is clear that Justice Gray injected his personal
sympathies and feelings into the Wong Kim Ark case, and made a decision contrary
to the law. When Wong Kim Ark was born, he owed allegiance to a real foreign
country, China. But as stated above, even this erroneous decision would not
support granting citizenship to families of illegal aliens.

Chief Justice Fuller and Justice Harlan dissented from the
this erroneous decision rendered for the majority by Justice Gray. It is stated
in this dissent:

The Fourteenth Amendment came before the court in the
Slaughterhouse Cases,
16 Wall. 36, 83 U. S. 73, at December
term, 1872, the cases having been brought up by writ of error in May, 180, 10
Wall. 278, and it was held that the first clause was intended to define
citizenship of the United States and citizenship of a State, which definitions
recognized the distinction between the one and the other; that the privileges
and immunities of citizens of the States embrace generally those fundamental
civil rights for the security of which organized society was instituted, and
which remain, with certain exceptions mentioned in the Federal Constitution,
under the care of the state governments; while the privileges and immunities of
citizens of the United States are those which arise out of the nature and
essential character of the National government, the provisions of its
Constitution, or its laws and treaties made in pursuance thereof, and that it is
the latter which are placed under the protection of Congress by the second
clause.

And Mr. Justice Miller, delivering the opinion of the
court, in analyzing the first clause, observed that

"the phrase 'subject to the jurisdiction thereof' was
intended to exclude from its operation children of ministers, consuls and
citizens or subjects of foreign States, born within the United States."

The dissenting opinion follows Senator
Howard's explanation, and I think it is clear that the dissent is correct. But
not even the Wong Kim Ark case gives
any real support to the idea that a child born to illegal aliens would be a
citizen. Gray stressed facts that showed that the parents were longtime legal
residents in business in this country. They obviously were legal residents as
were many Chinese residents that were admitted into the country to do work, such
as on the building of railroads.

The importance of the
Slaughterhouse Cases is evident. Justice Gray referred to the cases, but
omitted the key language applicable to the Wong Kim Ark case.

In the Slaughterhouse
Cases,[9]
83 U.S. 36 (1872), "The legislature of Louisiana, on the 8th of March, 1869, passed an act
granting to a corporation, created by it, the exclusive right, for twenty-five
years, to have and maintain slaughterhouses, landings for cattle, and yards for
inclosing cattle intended for sale or slaughter within the parishes of Orleans,
Jefferson, and St. Bernard, in that State (a territory which, it was said --
see infra, p. 83 U. S.
85 --
contained 1154 square miles, including the city of New Orleans, and a population
of between two and three hundred thousand people), and prohibiting all other
persons from building, keeping, or having slaughterhouses, landings for cattle,
and yards for cattle intended for sale or slaughter, within those limits, and
requiring that all cattle and other animals intended for sale or slaughter in
that district, should be brought to the yards and slaughterhouses of the
corporation, and authorizing the corporation to exact certain prescribed fees
for the use of its wharves and for each animal landed, and certain prescribed
fees for each animal slaughtered, besides the head, feet, gore, and entrails,
except of swine."

Justice Miller, on April 14th, 1873, delivered the opinion of the court. Below
are some key excerpts of the opinion that are relevant to this paper:

The proposition is therefore reduced to these terms: can any exclusive
privileges be granted to any of its citizens, or to a corporation, by the
legislature of a State?

This court is thus called upon for the first time to give construction to
these articles.

We do not conceal from ourselves the great responsibility which this duty
devolves upon us.

[On the importance of the 14th Amendment to this case:] The first
section of the fourteenth article to which our attention is more specially
invited opens with a definition of citizenship -- not only citizenship of the
United States, but citizenship of the States.

To remove this difficulty primarily, and to establish clear and
comprehensive definition of citizenship which should declare what should
constitute citizenship of the United States and also citizenship of a State, the
first clause of the first section was framed.

"All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State wherein
they reside."

The first observation we have to make on this clause is that it puts at rest
both the questions which we stated to have been the subject of differences of
opinion. It declares that persons may be citizens of the United States without
regard to their citizenship of a particular State, and it overturns the Dred
Scott decision by making all persons
born within the United States and subject to its jurisdiction citizens of the
United States.That its main purpose
was to establish the citizenship of the negro can admit of no doubt. The phrase,
"subject to its jurisdiction" was intended to exclude from its operation
children of ministers, consuls, and citizens or subjects of foreign States born
within the United States.[Emphasis added.]

The argument has not
been much pressed in these cases that the defendant's charter deprives the
plaintiffs of their property without due process of law, or that it denies to
them the equal protection of the law. The first of these paragraphs has been in
the Constitution since the adoption of the fifth amendment, as a restraint upon
the Federal power. It is also to be found in some form of expression in the
constitutions of nearly all the States as a restraint upon the power of the
States. This law, then, has practically been the same as it now is during the
existence of the government, except so far as the present amendment may place
the restraining power over the States in this matter in the hands of the Federal
government.

The court held that the Louisiana statute was
constitutional, and within the police power of the states.

It has been argued that the interpretation of the 14th
Amendment in the Slaughterhouse Cases
was dictum.
Dictum is generally defined as: "Statements or comments in an
opinion concerning some rule of law or legal proposition not necessarily
involved or essential to determination of the case at hand are obiter dicta, and
lack the force of adjudication."[10]
I disagree with the idea that the Court's language in the
Slaughterhouse Cases was
dictum. The appellants argued that their rights as citizens under the 14th
Amendment was a basis for overturning the statute, and the court construed the
meaning and purpose of the 14th Amendment. It is true that the part
on "equal protection of the laws" would have more relevance than the citizenship
part, but it was all part of the 1st section of the 14th
Amendment. On the citizenship part, the court construed it to have the same
meaning and purpose as explained specifically y by Senator Howard. Moreover, the
dissent of Justice Field, concurred in by Chief Justice Chase, Justice Swayne,
and Justice Bradley, would have struck down the statute on the basis of the 1st
section of the Fourteenth Amendment, stating:

… The provisions of the fourteenth amendment, which is properly a supplement
to the thirteenth, cover, in my judgment, the case before us, and inhibit any
legislation which confers special and exclusive privileges like these under
consideration. The amendment was adopted to obviate objections which had been
raised and pressed with great force to the validity of the Civil Rights Act, and
to place the common rights of American citizens under the protection of the
National government. …

Adding to the importance of the
Slaughterhouse Cases decision on the citizenship part is the
reference to it as authority in other Supreme Court cases. The decision was a
very important case on constitutional law.

A good example of
dictum, if it can even rise to that level, is a statement of the liberal
Justice Brennan in his majority opinion in
Plyler v. Doe, 457 U.S. 282, 1982,[11]
in Footnote 10:

As one early commentator noted, given the historical emphasis on geographic
territoriality, bounded only, if at all, by principles of sovereignty and
allegiance, no plausible distinction with respect to Fourteenth Amendment
"jurisdiction" can be drawn between resident aliens whose entry into the United
States was lawful, and resident aliens whose entry was unlawful.

The Plyler case was decided under the
equal protection part of the Fourteenth Amendment, which has been held in a
number of Supreme Court cases to grant protection to both citizens and
non-citizens in the country. Brennan's majority opinion stated:

The Fourteenth Amendment provides that "[n]o State shall . . . deprive any
person of life, liberty, or property, without due process of law; nor deny to
any person within its jurisdiction the equal protection of the laws."

That clause of the 14th Amendment is not limited
to citizens, and the definition of citizenship is not involved. Allowing
protection to an alien does not make him a citizen.Brennan's decision clearly recognized that:

We have never suggested that the class of persons who might avail themselves
of the equal protection guarantee is less than coextensive with that entitled to
due process. To the contrary, we have recognized that both provisions were fashioned to protect an identical class of
persons, and to reach every exercise of state authority.

"The Fourteenth Amendment to the Constitution is not confined to the
protection of citizens. It says:"

"Nor shall any state deprive any person of life, liberty, or property
without due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws."

"These provisions are universal in their application, to all persons
within the territorial jurisdiction, without regard to any differences of
race, of color, or of nationality, and the protection of the laws is a pledge of
the protection of equal laws."

Brennan referred to the explanation of Senator Howard:

"The last two clauses of the first section of the amendment disable a State
from depriving not merely a citizen of the United States, but any person,
whoever he may be, of life, liberty, or property without due process of
law, or from denying to him the equal protection of the laws of the State. This
abolishes all class legislation in the States and does away with the injustice
of subjecting one caste of persons to a code not applicable to another. . . . It
will, if adopted by the States, forever disable every one of them from passing
laws trenching upon those fundamental rights and privileges which pertain to
citizens of the United States, and to all person who may happen to be within
their jurisdiction."

Here, even Brennan clearly recognizes the difference
between affording equal protection of laws to all persons, even aliens, but not
citizenship.

Although I consider the above decision wrong, whether it is
right or wrong is not relevant to this paper. I consider the case wrong because
it infringes on the rights of the states to regulate their affairs, and how they
spend their money. It was a five to four decision, with the four more
conservative justices dissenting. They were Chief Justice Burger, Justice White,
Justice Rehnquist, and Justice O'Connor. Their basis:

Were it our business to set the Nation's social policy, I
would agree without hesitation that it is senseless for an enlightened society
to deprive any children -- including illegal aliens -- of an elementary
education. I fully agree that it would be folly -- and wrong -- to tolerate
creation of a segment of society made up of illiterate persons, many having a
limited or no command of our language. [Footnote 4/1]
However, the Constitution does not constitute us as "Platonic Guardians," nor
does it vest in this Court the authority to strike down laws because they do not
meet our standards of desirable social policy, "wisdom," or "common sense."
See TVA v. Hill,437 U. S. 153,
437 U. S. 194-195 (1978). We trespass on
the assigned function of the political branches under our structure of limited
and separated powers when we assume a policymaking role as the Court does today.

The Court makes no attempt to disguise that it is acting
to make up for Congress' lack of "effective leadership" in dealing with the
serious national problems caused by the influx of uncountable millions of
illegal aliens across our borders. [Footnote 4/2]

See ante
at 457 U. S. 237-238 (POWELL, J.,
concurring). The failure of enforcement of the immigration laws over more than a
decade and the inherent difficulty and expense of sealing our vast borders have
combined to create a grave socioeconomic dilemma. It is a dilemma that has not
yet even been fully assessed, let alone addressed. However, it is not the
function of the Judiciary to provide "effective leadership" simply because the
political branches of government fail to do so.

The Court's holding today manifests the justly criticized
judicial tendency to attempt speedy and wholesale formulation of "remedies" for
the failures -- or simply the laggard pace -- of the political processes of our
system of government. The Court employs, and, in my view, abuses, the Fourteenth
Amendment in an effort to become an omnipotent and omniscient problem solver.
That the motives for doing so are noble and compassionate does not alter the
fact that the Court distorts our constitutional function to make amends for the
defaults of others. …

Without laboring what will undoubtedly seem obvious to
many, it simply is not "irrational" for a state to conclude that it does not
have the same responsibility to provide benefits for persons whose very presence
in the state and this country is illegal as it does to provide for persons
lawfully present. By definition, illegal aliens have no right whatever to be
here, and the state may reasonably, and constitutionally, elect not to provide
them with governmental services at the expense of those who are lawfully in the
state.

It is not the function of the Supreme Court to substitute
its 'wisdom' for any lack of wisdom of congress.

To hold that a child born in the United States to illegal
aliens is a citizen, would mean that all persons born in the United States are
automatically citizens, and render the qualifying clause "and subject to the
jurisdiction thereof" superfluous and meaningless. That is not how provisions of
our Constitution are to be construed, and so far, the United Supreme Court has
not rendered a decision that would be that ridiculous.

But what would our present Supreme Court hold? Who knows?
We have four liberal justices, Ginsburg, Breyer, Sotomayor, and Kagan, who are
liberals and have no respect whatsoever for our Constitution. They would
probably hold that anchor babies are citizens. We have four more conservative
justices, Roberts, Scalia, Thomas, and Alito that respect our Constitution and
would probably correctly hold that anchor babies are not citizens. What the
flip-flopping Kennedy would do is anyone's guess.

It is a disgrace to our country than many of our Supreme
Court Justices have rendered decisions based on their political and social
views, instead of the law as intended by those who were responsible for its
enactment. In selecting a federal judge, and particularly an important appellate
judge, we have very divisive hearings, because the President and members of
congress are trying to get judges of their own political views. This is
particularly true of Supreme Court justices. The only reason for these divisive
hearings is that the senators and congressmen know that liberal justices will be
influenced in their decisions by their political views. And that is exactly what
a liberal wants. Politics and personal views should not enter into a decision.
And if judges could be depended on to render their decisions according to the
law, with no influence from their own political and social biases, there would
be no reason for such divisive hearings. The only interest would be in getting
the best honest judge for the job.

What we need is an amendment to our Constitution that would
prohibit judges and justices from changing our Constitution to their own
personal views, which they have done many times; thereby usurping the rights of
the people who have the sole right to change our Constitution. I have
recommended a simple amendment that would accomplish that in a book and in an
article, both of which are on this website.[12]
It would require judges to be judges, and not Super Legislators.

George Washington was our first President, and I consider
him the greatest.He acted as the
Chair of the convention that drafted our Constitution of the United States. He
clearly stated:

The basis of our political systems is the
right of the people to make and to alter their constitutions of government. But
the constitution which at any time exists, till changed by an explicit and
authentic act of the whole people, is sacredly obligatory upon all. (George
Washington, Farewell Address, September 19, 1796, The Annals of America,
Vol. 3, p. 612, Encyclopaedia Britannia, Inc., 1968)